1982 PLP 1942 (CLC)

Abdul Karim Lakhan for Respondents Nos. 9, 11 and

12. Nemo for the Remaining Respondents. Date of hearing; 18th November, 1981. AJMAL MIAN, 3.‑This Petition is directed against .the orders dated 28th April, 1976 and dated 22nd September 1976, passed by Respondent No. 1, in exercise of suo motu revisional power under MLR 115 declaring certain alienations made by the Petitioner in favour of Respondents Nos. 3 to 12 as invalid.

2. The brief facts leading to the filing of the above petition are that the petitioner as a claimant displaced person got verified 36000 Units of agricultural land in the district of Larkana in lieu of his claim. However, subsequently, the Petitioner's entitlement was reduced to 152 Acres 25 Ghuntas corresponding to 5194 Units and, therefore, the rest of the land allotted to the petitioner was surrendered under MLR 89/91, but he was allowed to purchase the surrendered land which he purchased to the extent of 343 Acres 14 Ghuntas corresponding to 1,778 Units. It seems that between 1967 to 1971 before the target date the petitioner sold out some of the lands in favour of Respondents Nos. 3 to‑ 12 under sale agreements and gave possession thereof to the said Respondents. 1t is the case of the Petitioner that after the above sale factually the possession was given to Respondents Nos. 3 to 12, who started cultivating the above land and paying the revenue/taxes. Upon the promulgation of M. L, R. 115 the Petitioner filed a declaration which was registered as case No. 124‑10 LC72 and was disposed of by the Land Commissioner Sind Hyderabad vide his order dated 16th November, 1973 (Annexure ‑ B') accepting the above sale transactions as valid. However. m 1975 the Petitioner received a notice from Respondent No. 1 under suo motu revisional power as mentioned hereinabove. 1n consequence thereof the impugned order dated 28th April. 1976 was passed and all the said sale transactions were held invalid on the ground that the same were effected through sale agreements and not through registered sate‑deeds on proper stamp papers. In furtherance of the above order dated 28th April, 1976, the Deputy Land Commissioner, Larkana, through his order dated 2nd September, 1976. purported to implement the above order of Respondent No.

1. The Petitioner being aggrieved by the above order has filed the present Petition.

3. In support of his Petition it has been urged by Mr. Ali' Akbar the learned Advocate, for the petitioner and Mr. Abdul Karim Lakhan the learned Advocate for Respondents Nos. 9, 11 and 12 that the ground on which the above transactions have been held invalid is not sustainable in law in view of the various pronouncements made by the Lahore High Court and this High Court. Particularly reliance has been placed on the case of Ch. Atta Muhammad and 10 others vs. Federal Land Commissioner and others (1979 C L C 294) the case of Leemo Khan and others v. Member, Federal Land Commissioner and 3 others (P L D 1981 Kar. 114) and the case of Sachunand and others v. Officer on Special Duty Federal Land Commission Rawalpindi and others (P L D 1981 Kar. 393). In the above Lahore case a Division Bench of the Lahore High Court while considering the question as to whether the registration of an alienation for the purpose of the M. L. R. was necessary or not, observed that for the purpose of the regulation, it is the defacto position that counts and not de jure one, except where the validity of transfer is disputed by one or the other party to the transfer. The above Lahore case was followed inter alia by the two Division Benches of this Court in the above two cited Karachi cases and also in Constitutional Petitions Nos. 560/76, 207, 208, 209, 210 of 1978 decided by this Division Bench on 11th November, 1981.

4. In this view of the matter Respondent No. 1 approached the above case on wrong premises of law and, therefore, the order cannot belt sustained on that ground. We, therefore, declare the two impugned orders as being without lawful authority and the Respondents 1 and 2 are restrained from implementing the same. However, we may clarify that it will be open to Respondent No. 1 to initiate proceedings if in fact the above sale transactions were not acted upon and Respondents Nos, 3 to 12 were not in de facto cultivation possession of the land since the date prior to the target date. There will be no order as to costs. K. M. A. Petition accepted.